FIC1996-578

In the Matter of a Complaint by Joseph J. Cassidy, Complainant
against
Department of Public Utilities, City of Norwich, Respondent

The above-captioned matter was heard as a contested case on April 14, 1997, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

2. It is found that by letter dated November 7, 1996, the complainant requested, among other things, a copy of the Transportation Standby and Balancing Agreement ("agreement") between the respondent and the Tribal Utility Authority of the Mashantucket Pequot Tribe.

3. By letter dated November 13, 1996, the respondent advised the complainant that with the exception of Exhibit 1 ("exhibit") to the agreement, the requested records had been provided to his client, Yankee Gas Services Company ("Yankee Gas"). The respondent further advised the complainant that the requested exhibit was exempt from disclosure pursuant to § 1-19(b)(5), G.S.

4. By letter of complaint dated and filed with this Commission on November 22, 1996, the complainant appealed the respondent's denial of the requested exhibit.

5. It is found that the exhibit is an exhibit to a contract under which a public agency is to provide services as a vendor to another party and is itself a public record within the meaning of § § 1-18a(d) and 1-19(a), G.S.

trade secrets . . . defined as unpatented, secret, commercially valuable plans, appliances, formulas, or processes, which are used for the making, preparing, compounding, treating or processing of articles or materials which are trade commodities obtained from a person and which are recognized by law as confidential, and commercial or financial information given in confidence, not required by statute . . . .

7. The respondent contends that: the subject exhibit contains confidential and proprietary information, as well as feasibility estimates and evaluations describing the costs of providing the contracted gas service to the Mashantucket Pequot Reservation; such information is not readily available from other sources; and disclosure would give its competitors, which include Yankee Gas, an unfair business advantage to know the methodology used to adjust the cost of the contracted gas service.

8. It is found, however, that the respondent failed to prove that the subject exhibit constitutes a trade secret as defined in § 1-19(b)(5), G.S.

9. It is also found that the subject exhibit was not given to the respondent in confidence, nor is it, in fact, confidential, within the meaning of § 1-19(b)(5), G.S.

10. The respondent also claims that the exhibit is exempt from disclosure pursuant to § 1-19(b)(7), G.S.

the contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision . . . .

12. It is found that the respondent failed to prove that the exhibit in fact contains feasibility estimates and evaluations relative to the contract for gas transportation services as set forth in § 1-19(b)(7), G.S.

13. It is also found that the subject exhibit does not relate to either the acquisition of property or to prospective public supply and construction contracts, within the meaning of § 1-19(b)(7), G.S.

14. In light of paragraphs 12 and 13 of the findings, above, the Commission need not consider further the respondent’s claims under § 1-19(b)(7), G.S.

15. It is therefore concluded that the respondent failed to prove that the subject exhibit is exempt from public disclosure under the provisions of either § § 1-19(b)(5) or 1-19(b)(7), G.S.

16. It is further concluded that the respondent violated § § 1-15(a) and 1-19(a), G.S., by failing to provide the complainant with a copy of the subject exhibit.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. The respondent shall forthwith provide the complainant with a copy of the subject exhibit.

2. Henceforth the respondent shall strictly comply with the public records requirements set forth in § § 1-15(a) and 1-19(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 9, 1997.

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:
Joseph J. Cassidy, Esq.
Rome McGuigan Sabanosh, PC
One State Street
Hartford, CT 06103-3101

Department of Public Utilities, City of Norwich
c/o David Silverstone, Esq.
Silverstone & Koontz, PC
227 Lawrence Street
Hartford, CT 06106

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC 1996-578/FD/eal/07231997